This Code was made by and for the software preservation community, with the help of legal and technical experts. The publication provides librarians, archivists, curators, and others who work to preserve software with a tool to guide their reasoning about when and how to employ fair use—the legal doctrine that allows many value-added uses of copyrighted materials—in the most common situations they currently face.

Libraries, archives, and museums hold thousands of software titles that are no longer in commercial distribution, but institutions lack explicit authorization from the copyright holders to preserve these titles or make them available. Memory institutions also hold a wealth of electronic files (texts, images, data, and more) that are inaccessible without this legacy software. The preliminary report released by the project team in February documents high levels of concern among professionals worried that while seeking permission to archive software is time-consuming and usually fruitless, preserving and providing access to software without express authorization is risky. Meanwhile, digital materials languish, and the prospects for their effective preservation dim.

In interviews with the project team, software preservation professionals made it clear that users and uses for legacy software are as various as human inquiry, and will multiply over time. In the words of Jessica Meyerson, a founder of the Software Preservation Network, “our cultural record is increasingly made up of complex digital objects.” Another interviewee invoked technology-investor Marc Andreessen’s argument that “software is eating the world,” observing that access to the digital cultural record is itself dependent on software.

The Code of Best Practices in Fair Use for Software Preservation will help this community overcome legal uncertainty by documenting a consensus view of how fair use applies to core, recurring situations in software preservation. Fair use has become a powerful tool for cultural memory institutions and their users, allowing them to realize the potential of stored knowledge with due respect for the interests of copyright holders. (See the 2012 Code of Best Practices in Fair Use for Academic and Research Libraries.) Fair use holds the same potential where software preservation is concerned, particularly given the transformative nature of the uses described in the Code.

The Code of Best Practices in Fair Use for Software Preservation presents a series of five situations in which librarians, archivists, curators, and others working to preserve software can employ fair use. The Code describes the activities, states the principle informing the choice to employ fair use, and makes clear the limitations of such use—that is, the outer bounds of the community consensus at this time. The five situations covered are:

Accessioning, stabilizing, evaluating, and describing digital objects

Documenting software in operation, and making that documentation available

Providing access to software for use in research, teaching, and learning

Preserving files expressed in source code and other human-readable formats

The Code also includes a brief introduction to software preservation and copyright, an epilogue on the future of software preservation, and two appendices on (1) the fair use doctrine and preservation practice in general and (2) other copyright-related issues related to preservation.

This Code is the result of a project funded by the Alfred P. Sloan Foundation. Co–principal investigators Patricia Aufderheide of the Center for Media & Social Impact at American University’s (AU) School of Communication, Brandon Butler of the University of Virginia Library, Krista Cox of the Association of Research Libraries, and Professor Emeritus Peter Jaszi of the AU Washington College of Law conducted extensive interviews and focus groups with software preservation experts and other stakeholders to produce this Code. The project was coordinated by the Association of Research Libraries (ARL), the Center for Media & Social Impact at AU, and the Program on Information Justice and Intellectual Property at AU Washington College of Law.

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Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!

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02/19/2019 at 3:09pmI first saw this discussed on Twitter, now WaPo has an article on Justice Thomas' concurrence in a denial of cert, but that urges reexamining the 1st & 14th Amendments in libel cases (i.e. a reexamining of NYT v Sullivan) https://t.co/lCwY85MEO0